Yotamu Phiri v The People (Appeal No. 146/2022) [2024] ZMCA 88 (2 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) Appeal No.146/2022 BETWEEN: YOTAMU PHIRI AND THE PEOPLE u 2 MAY 2024 AL REGIS APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA ON: 17 th May 2023 and 2 nd May 2024 For the Appellant : D. Kabuka , Legal Aid Counsel , Legal Aid Board For the Respondent : A. Kennedy-Mwanza , Principal State Adv ocate , National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : l . Benwa and Another v . The People [1975] Z. R . 1 2 . David Zulu V . The People [1975] Z . R . 13 3. Dorothy Mutale and Anothe r v . The People [1995-1997] Z . R . 107 4. David Zulu v . The Peop le [1977] Z . R . 151 5 . Saidi Banda v . The People , SCZ Appeal No . 144 of 215 J2 6 . The People v . Njobvu [1968) Z . R . 132 7 . The DPP v . Lukwo sha [1966] Z . R. 14 INTRODUCTION c11 The appellant appeared before the High Court (Makubalo , J . ) , charged with one count of the offence of murder , contrary to Section 200 of the Penal Code . He was also charged with three counts of the offence of attempted murder , contrary to Section 215 of the Penal Code. [21 He denied t he charges in all the four counts and the matter proceeded to trial . (3J At the end of the trial , he was convicted of the offences in all of the four counts . [41 He was condemned to suffer capital pun ishment for the murder . As for the three charges of attempted murder , he was sentenced to 15 years imprisonment , for each count , and the sentences are to run concurrently . [ SJ He has appealed against all the convictions . CASE BEFORE THE TRIAL COURT J3 CGJ On 29 th December 2017 , Belita Chibale who was in the company of a child named Julita Mbewe , arrived at her mother ' s house in Sangulukani Village , in Vubwi . Her mother , Josphita Shema , was at the time married to the appellant . c11 Later that day , she had supper with the appellant , her mother and some other chi l dren who were present . ca1 In the night , the appellant and Josphita Shema , retreated into the house where they were to spend the night . They retired with , Julita Mbewe , Madalesi Chibale and Kondwani Chibale . [91 Just before sleeping , the appellant gave all the children some soaked dry groundnuts to eat . Soon after eating the groundnuts , the children started complaining about stomach pains to the appellant . When the appellant was informed , he was indifferent . c1 01 The following morning , Beli ta Chibale , who spent the night in a different house within the same compound , went and knocked at the house where the appellant , her mother , Julita Mbewe , Madalesi Chibale and Kondwani Chibale , had spent the night. J4 She received no response but she could hear sounds of children crying in the house . c111 The appellant eventually opened the door , Beli ta Chibale found the three children , who were all weak , lying down . They had all vomited and they had running stomachs . She removed them from the house . c121 She did not see her mother . c131 In the meantime , the appellant collected some water and went to take a bath . On his return , Belita Chibale asked him where her mother was and he informed her that she had died . When she entered the bedroom , she found her mother dead . There wes vomit and faeces around her . c14J The children were taken to a clinic where they were treated for food poisoning , while a post-mortem determined that the cause of Josphita Shema ' s death was an organophosphate called monochrotophos . c1s1 On being questioned by the police , the appellant told them that he had laced the groundnuts with poison to kill birds . However , in court he said he bought the groundnuts from a friend in Malawi and that he was not aware that they were laced with poison . JS c1GJ He also testified that after giving the children the groundnuts , he also ate some together with his wife . c1?J He said he suffered abdominal pains as well and had a running stomach . c1a1 The trial Judge rejected the appellants claim t hat he ate some of the groundnuts because he was not aware that they were poisonous . c191 She noted that all those who ate the groundnu ts fell sick . She also noted that al though the appellant , who was in the same house with the children , c laimed not to have heard them crying , a person who was outside the house did hear them crying . c2 0 1 She also noted that the appellant claimed not to have smelled the faeces yet they were all over the room where his wife was found dead . [ 2 1i She concluded that the appellant deliberately poisoned the groundnuts because he wanted to murder his wife and children . GROUNDS OF APPEAL [ 221 The sole ground of appeal is that an inference that the appellant murdered his wife and also attempted to kill the children , is not the only inference that J6 could have been drawn on the evidence that was before the trial Judge . CONSIDERATION OF APPEAL AND COURT'S DECISION [23J Before we consider counsels' arguments on whether the only i nference that could have been drawn on the evidence that was before the trial Judge was that the appellant murdered his wife , and attempted to kill his children , we are going to consider whether the charges of attempted murder were proved . [2 4 J The trial Judge indicated that she had no doubt that the a ppellant gave groundnuts that were laced with a poison to the children to eat . The appel l ant knew or ought to have known that eating such groundnuts , would cause death or grievous bodily harm . [2si In the case of Benwa and Another v. The People1 , it was held that in a case "of attempted murder, the charge is to attempt unlawfully to cause the death of another . There is no question of constructive malice in that case; i t is necessary to find the actual intent to kill" [26J It is our view that since actual intent must be J7 proved , intention to kill in a charge of attempted murder cannot be proved through inferred int2nt. [27J In this case , there is no evidence establishing t hat the appellant did actually intend to kill the children . The trial Judge concluded that the appellant intended to cause the death of the children because he gave t hem groundnuts he knew were poisonous . [ 2BJ In other words , she drew an inference t hat he intended to kill them because he gave them poisonous ground nuts . In the circumstances of this case , that was erroneous . [29J We therefore set aside the appellant ' s conviction for the three count s of attempted murder . We will , in due course , consider whether the evidence aga i nst the appellant did prove any other offence . [30J Reverting to the submissions in support of the appeal , Ms . Kabuka argued that malice afterthought , an essential ingredient of a charge of murder , was not proved because there was no evidence showing that the appellant had any motive t o harm his wife . [31J She also referred to the case of David Zulu v . The J8 People2 and submitted that in absence of evidence of acrimony between the appellant and his wife , and there being no struggle marks , it is possible that the appellant ' s wife could have committed su i cide . [32J That being the case , and on the basis of the of Dorothy Mutale and Another v. The People 2 , she submitted that since Josphita Shema could have committed suicide , the court should have drawn that inference , which was favourable to the appel l ant . [33J Finally , Ms . Kabuka argued that the charge of murder was not proved because an inference of guilty is not the only inference that could have been drawn on the evidence that was before the trial Judge . [34J In response to the sole ground of appea l , Mrs . Kennedy- Mwanza submitted that the test set out in the cases of David Zulu v . The People2 and Saidi Banda v. The People 4 , for a conviction to be anchored on circumstantial evidence , was met . [3SJ In addition to the evidence that linked the appellant to the commission of the offence , there were odd coincidences and in some cases , something more to warrant the conviction . [36J Mrs. Kennedy- Mwanza pointed out that despite J9 claiming that he also ate the groundnuts , the appellant was the only person who did not fall sick . The appellant also claimed he did not react to the soiled condition of his wife because he did no t notice anything odd and yet there was faecal matter where he slept . [37J Further , the appellant claimed that he did not hear the children cry or show any concern when he was informed of their condition ; he went on t o take a bath . [3SJ Fina l ly , Mrs . Kennedy-Mwanza submitted that malice afterthought was proved by the evidence showing that the appellant either intended to cause death or grievous harm , when he gave h i s wife and t he children poisonous groundnuts . C3 9J The cases of The People v . Njobvu5 and The DPP v. Lukwosha 6 , where referred to in support of the proposition . [40J Section 204 of the Penal Code, defines mal i ce aforethought in the following terms : JlO "Malice aforethought shall be deemed to be estabL:.shed by evidence proving any one or more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not ; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony." [4 1J The trial Judge found that the appellant was aware that the groundnuts were poisoned because all the persons who ate them became sick . Despite claiming that he ate some , he did not become sick . In the circumstances of this case , the trial Judge cannot be faulted for rejecting the appellant ' s claim that he ate some of the groundnuts . Jll C42J The argument that Josphi ta Shema may have cornrni tted suicide is not plau s ible in the - face of evidence that the children a l s o fel l ill after eating groundnuts they were given by the appellant , and were treated for poisoning . C43J That conc l usion is untenable and consequently the holding in the case of Dorothy Mutale and Another v . The People2 , is inapplicable because an inference that Jo s phita Shema committed suicide cannot be drawn on the evidence that was before the trial Judge . C44J As indicated earlier on , the trial Judge cannot be fa u lte d for finding that the appellant did not consume any of the poisoned groundnuts . We equally find that she was on point when she found that the fact that he did not consume those groundnuts , was indicat i ve t h at he knew that they would kill or cause grievous harm . C4SJ Section 204 (b) of The Penal Code provides malice aforethou ght can be proved by knowledge that the act will probably cause the death of or grievous harm to some person . This being the case , we find that malice aforethought was proved . J12 C46J Considering all the circumstances of the case , including the apparent indifference of the appellant on the mate r ial day , we are satisfied that the trial Judge rightly came to the conclusion that the only inference that could be drawn on the evidence before her , was that the appellant murdered his wife . C47J We find no merit in the appeal against that conviction and we dismiss it . [ 4BJ We will now revert to the evidence associated with the three counts of attempted murder whose convictions we set aside . [49J There is evidence that the children were treated for poisoning , however there is no evidence of whether it is the same poison that killed their mother . Even if that was the case , the accepted evidence is that the children ate the groundnuts from the same source as those that their mother was given . C50 J After eating the groundnuts , like their mother , they vomited and suffered diarrhoea . Fortunately they did not die . C51J Section 231 of the Penal Code sets out the offence J13 of Maliciously administering poison with intent to harm. It provides that : "Any person who unlawfully , and with intent to injure or annoy another , causes any poison or noxious thing to be administered to, or taken by, any person, and thereby endangers his life, or does him some grievous harm , is guilty of a felony and is liable to imprisonment for fourteen years. " [521 In the absence of the actual intent to murder , we still find that the evidence does prove that the appellant intentionally administered a poisonous or noxious substance on the children and they suffered grievous harm . [531 In place of the three counts of attempted murder we convict him of the offences of maliciously administering poison with intent to harm . VERDICT [541 The appeal against conviction for the offence of the murder is dismissed and the sentence is upheld . [551 The appeal against conviction for the offences of J14 attempted murder is allowed . However , the appellant is not acquitted but convicted of the lesser charges of maliciously administering poison with intent to harm contrary to Section 231 of the Penal Code. [SGJ We sentence him to 5 years imprisonment with hard labour for each count and the sentences are to run concurrent o f each other . DEPUTY JUDGE PRESIDENT P . C. M. Ngulube COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE